delivered the opinion of the court,
As those rulings of the court below' which put the burthen of proof upon the defendant, plaintiff in error, have been treated in the argument in this court as of primary importance, we will first examine and dispose of the exceptions to them. These exceptions are numbered, respectively, 14, 15, 16 and 17, and the rulings of which they complain may be summed up as follows: that where for a consideration a railroad company undertakes to transport a passenger from one point of its line to another, there arises an implied contract, upon part of the company, that it has, for that purpose, provided a safe and sufficient road, and that its cars are sound and roadworthy; that where the passenger is injured by any accident arising from a collision or defect in machinery, he is required, in the first place, to prove no more than the fact of the accident and the extent of his injury; that a prima facie case is thus made out, and the onus is cast upon the carrier to disprove negligence; that, in the case trying, the legal presumption was that the injuries to the plaintiff were caused by the negligence of the defendant, and that this presumption continued until a countervailing presumption of fact was established. To this the learned judge added, that this prima facie presumption might be overthrown by proof, to the satisfaction of the jury, that the injury complained of resulted from inevitable accident, or from something against which no human prudence or foresight could provide. Now, we must say, the able argument of the learned counsel to the contrary notwithstanding, that a better summary of the law *358governing cases of this kind could, scarcely have been framed. It is, indeed, almost a transcript of the ruling of this court, as delivered by Mr. Justice Woodward, in Sullivan v. The Railroad Co., 6 Casey 234. The case referred to being in point, it ought, of itself, to settle this part of the present contention, unless there are other cases on our books which teach a contrary doctrine. But, so far from this being so, the very contrary is the fact. In Laing v. Colder, 8 Barr 479, Mr. Justice Bell says, when speaking of the responsibility of passenger carriers: “ But though in legal contemplation they do not warrant the absolute safety of passengers, they are yet bound to the exercise of the utmost diligence and care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable to answer in damages. Nay, the mere happening of an injurious accident raises, prima facie, a presumption of neglect, and throws upon the carrier the onus of showing it did not exist. This punctilious attention to the safety of the passenger embraces the duty of providing strong and sufficient carriages, or other conveyances for the journey, in every respect, sea, road and river worthy; safe and steady horses, or other means of progression, and skilful drivers, conductors and other agents, whose duty it is to use every precaution against danger.” This language is certainly very strong, full and to the point, and Sullivan v. The Railroad Co. is but an iteration of it. Both these cases are cited by Mr. Justice Agnew in Meier v. The Railroad Co., 14 P. F. Smith 225, and their language reiterated. Furthermore, in the case of the Delaware, Lackawanna & Western Railroad Co. v. Napheys, 9 Norris 135, Mr. Justice SteRrett makes use of the following language : “ If a passenger seated in a railroad car is injured in a collision, or by the overthrow of a car, the breaking of a wheel, axle or other part of the machinery, he is not required to do more, in the first instance, than to prove the fact, and show the nature and extent of the injury. A prima facie case of negligence is thus made out, and the onus is cast upon the carrier to disprove negligence.” It is thus manifest, that the rulings of the learned judge of the court below, on this point, are abundantly supported by the rulings of this court, and that the exceptions taken thereto must be dismissed. In immediate connection with this part of the case, the refusal of the court to affirm the defendant’s sixth point may be considered. That point required the instruction, that if the railroad in question had been constructed under the supervision of a competent engineer, and that the drainage, at the place where the accident happened, was provided for in a manner directed and approved by him, that subsequently the road was leased to the defendant, and that the embankment was washed out by a storm of unusual violence, the defendant was not liable for any error of judgment of the engineer. *359even if such error occasioned the accident. This point, curiously enough, draws upon the doctrine of inevitable accident to help out a principle of law, sufficiently strong, in a proper case for its application, to stand alone. It is a principle, the latest enunciation of which is found in the case of the Mansfield Coal and Coke Co. v. McEnery, 10 Norris 185, in which it was held to be a sufficient answer to an action brought by an employee, for an injury resulting from the falling of a bridge of the company by which he was employed, that such bridge had been built by a competent builder. But this doctrine can have no application to the case in hand, and for the very good reason that a passenger is not an employee. The one by his contract is presumed to run the ordinary risks of the machinery and appliances he is engaged to supervise or use; he is also held to a knowledge of the character and obvious defects of such machinery and appliances, as well as the skill- and habits of his co-servants. A passenger, on the other hand, neither can know, nor is presumed to know, anything about these things. He has paid for his passage, and he is wholly passive in the hands and at the mercy of the transportation company and its agents. The doctrine advocated by the defendant’s counsel, by’ which the passenger would be put on a par with an employee, will not do; it accords neither with reason nor precedent. The cases of Grote v. The Chester and Hollyhead Railroad Co., 2 Ex. 251, and Francis v. Cockrell, Law Rep., 5 Q. B. 184, are full in point. In the former, the action was by a passenger against a railroad company for damages resulting from the breaking down of a bridge whilst the train was passing over it, and it was held, that whilst it was a question for the jury, whether the defendant had engaged competent engineers, who had adopted the best method and used the best materials in the construction of the bridge, yet thé mere fact of its having engaged such persons would not relieve it from the consequences of an accident arising from a deficiency in the work. In .the-latter, the action was for damages resulting to the plaintiff from the breaking duwm of a grand stand, erected for the viewing of certain races, and which had been built by a competent person, and leased to the defendant, he, the defendant, having received a compensation from the plaintiff for admission to the stand; it was held, that the plaintiff could sustain an action against the defendant for the damage thus sustained, although the defendant was, himself, free from all negligence, and had employed a competent person to erect- the stand. In view of these authorities, we have no doubt but that this sixth point was properly refused, and that the court was right in saying to the jury that the mere fact of the defendant being a lessee of the road did not release it from the consequences of its own neglect, and that it was bound to see that its road, whether owned or leased, was safe and sufficient between the points indicated on the plaintiff’s ticket. *360The defendant’s counsel, however, most' earnestly contends that these rules do not apply to the case in hand, because the accident was occasioned by a condition of things which the company could neither foresee nor provide against; that it tvas the immediate result of the great rain storm which occurred' at that time; a storm unprecedented in the history of the country, and one which set at defiance all human skill and prudence. This, however, was the very point in controversy, and the learned judge told the jury, that if the facts were as above stated, they must find for the defendant.
But he also told them that if the immediate cause of the disaster was the want of a proper construction or drainage of the embankment, the fact of the storm would not, of itself, avail as a defence. In this we think he was correct. The engineers who were examined on part of the plaintiff, were of the opinion that the embankment ivas not properly drained, that the arrangements for that purpose were faulty, and that had there been a culvert through it of proper dimensions, the rain-fall, great as it was, would have produced no serious impression upon it. It is true, indeed, that the experts produced upon part of the defendant were of a different opinion. But the jury believed the former rather than the latter; this they had a perfect right to do, and so the matter ends so far as either this court or the court below is concerned. In this connection we may notice the complaint embodied in the tenth assignment. John A. Wilson was asked by the defendant’s counsel what practical experience he had as to the effect of a down-pour of rain upon a strong and well-built railroad embankment, when the case was not complicated by any question of drainage. On objection this question was ruled out. About the rectitude of this ruling we might have some doubt, but as the question was immediately afterward put in a slightly different form, and without objection, fully answered, we cannot see that the defendant has anything material of which to complain. The proposal to -pro.ve, by the same witness, that water is used in hydraulic mining, and that it gains force by being thrown from an elevation, was properly ruled out, since, however well it might have served to illustrate hydraulic mining in the west, it had nothing to do with the case in hand. The exceptions covered by the 3d, 4th, 6th, 6th, 7th, 8th and 9th assignments, seem, at first blush, far more serious, and the questions therein stated ought not to have been allowed; nevertheless, an examination of the testimony satisfies us that no harm was done thereby to the defendant, since the answers were such, and such only, as the plaintiff would have been entitled to had the questions been properly framed. The. questions complained of were, “ What, in your opinion, would be a proper method of building the road at that point?” and, “What, in your judgment, would it be proper for the lessee or user of a railroad to do at a point like *361that, if he saw, when he took possession, no provision for drainage ?” The first of these is objectionable in that it is too general and indefinite, and calls upon the witness for his opinion, not only upon what ought to have been done to insure the permanence and stability of the road at the point in controversy, but also, as to how it ought to have been constructed in every and all particulars, though such particulars might be foreign to the matter in issue— the proper drainage of the embankment. The second is less objectionable, since it calls the attention of the witnesses to the controverted point, the drainage as above stated. When, however, we come to examine the answers of the experts, we find them such as were legitimate and proper. Mr. Slaymaker says, “ I would certainly adopt some way of passing the water which should gather in that basin.” Mr. Wright: “I should think the proper thing would be to make provision for drainage such as the circumstances seemed to require.” Mr. Sharpless: “I think it would be his duty,” that is the lessee’s, “to provide some means of drainage to get rid of the water;” and the testimony of Messrs. Osborne and Mifflin is of the same import. It will thus be seen that whilst the questions were not such as they ought to have been, the answers were unexceptionable, hence, no injury resulted to the defendant from the error committed by the court. Again, complaint is made of the answers to the defendant’s 7th and 8th points. These points required the court to instruct the jury, that there was no evidence from which they could find the defendant liable to the plaintiff for alleged negligence in running the locomotive backwards, with the tender in front and milk-car in the rear. The answer was as follows: “We answer these points affirmatively. The matters contained in these points would not be sufficient without proof that they caused the accident, or contributed directly to it; but the jury will consider the evidence relating to the matters contained in these points with other evidence in the case, in deciding whether or not defendant has been guilty of negligence.” This answer is somewhat ambiguous, but as it is more favorable to the defendant than it ought to have been, we cannot understand why it is complained of. Three locomotive engineers say that an engine running backwards cannot be so readily handled as when in its proper position, and that the light is unsteady and unreliable. Indeed, any one might know that running an engine hind end foremost, with the tender in front, especially at night and in a storm, when the utmost vigilance is required, was, in itself, a dangerous circumstance. Then, as to the position of the milk-car, it is sufficient to say that the defendant’s own rules condemned that, and pronounced such an arrangement dangerous. In this instruction the court erred, but the error consisted in not negativing, and that emphatically, the defendant’s points. We next turn to the first assignment, which complains of the admission of the question *362put on part of the plaintiff, “ What is your estimate of your injuries in money ?” This question ought not to have been permitted, but the exception is rather to the question than to the answer, for the answer simply amounts to nothing. It was, “I would sooner have my health than ten thousand dollars.” This, of course, comes to nothing in the way of fixing value, and it was so treated by the court, for the jury was instructed that, upon this subject there was no evidence, and under proper directions that body was allowed to fix the damages as they should think just from all the circumstances of the case. Moreover, that this testimony produced no effect upon the jury, is obvious from the verdict. The error thus being harmless, we cannot reverse the case on account of it. In the remaining exceptions we discover nothing requiring comment, and-without more they are dismissed.
Judgment affirmed.
A motion for a re-argument was subsequently made, which the court, on June 21st 1880, refused.